Top court bars implementation of bill limiting CJP powers

• "Making such injunction was necessary to prevent imminent danger," says SC.
• "Prima facie, the bill is direct interference with independence of the judiciary."
• Political parties can become parties in the case, states the order.

In a major development, an eight-member larger bench of the Supreme Court (SC) on Thursday ordered that even if the Supreme Court (Practice and Procedure) Bill 2023 received the assent of the president, the bill would not be acted upon in any manner till further order.

The top court's eight-member larger bench — headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial and comprising Justice Ijaz ul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed — issued its eight-page ruling on three petitions challenging the SC bill.

“The moment that the Bill receives the assent of the President or (as the case may be) it is deemed that such assent has been given, then from that very moment onwards and till further orders, the Act that comes into being shall not have, take or be given any effect nor be acted upon in any manner,” read the interim order. 

In its order, the bench stated that the facts and circumstances presented here are extraordinary both in import and effect.

“Prima facie, the contentions raised disclose that there is a substantial, immediate and direct interference with the independence of the judiciary in the form of multiple intrusions, in the guise of regulating the practice and procedure of this court and conferring upon it a jurisdiction that appears not to be permissible under any constitutional provision. Such intermeddling in the functioning of the court, even on the most tentative assessment, will commence as soon as the Bill becomes the Act,” it added.

The SC larger bench stated that an interim measure ought to be put in place, in the nature of an anticipatory injunction.

“The making of such an injunction, to prevent imminent apprehended danger that is irreparable, is an appropriate remedy, recognised in our jurisprudence and other jurisdictions that follow the same legal principles and laws,” read the order.

The larger bench of the top court heard the petitions challenging the SC bill 2023 amidst a boycott of court proceedings by the country’s top lawyers body and criticism of the coalition government.

Pakistan Bar Council (PBC) Vice Chairman Haroonur Rashid and Executive Committee Vice Chairman Hassan Raza Pasha, said that the chief justice constituted the bench in haste for hearing the petitions.

They said that the lawyers’ community would boycott the court proceedings across the country on Thursday.

The bill is aimed at curbing the CJP’s suo moto powers in an individual capacity.

The SC bill was initially passed by the Senate amid PTI’s opposition on March 30 and sent to the president for his assent. The bill was moved in the Senate after it was approved by the National Assembly a day earlier.

The president, however, returned the SC bill for reconsideration to parliament as per the provisions of the Article 75 of the Constitution, stating that the bill prima-facie travels beyond the competence of the parliament and can be assailed as colourable legislation.

On April 9, the coalition government got the bill passed by a joint sitting of parliament.

Subsequently, three separate petitions were filed by Raja Amer Khan, Chaudhry Ghulam Hussain and Mohammad Shafay Munir, among others, under Article 184(3) of the Constitution, asking the top court to set aside the bill.

‘Murder of justice’

Strongly reacting to the order issued by the eight-member bench of the top court, the ruling alliance termed it a “murder of justice and reputation of the SC”.

In a statement, the Pakistan Democratic Movement (PDM)-led government called the interim order the “outcome of the one-man show” and said that it would be remembered as a dark chapter in the history of the judiciary.

The ruling parties vowed that they would strongly resist this “judicial injustice” and devise a strategy to bring “justice” to the judicial system.

Today's hearing

At the outset of the hearing, the petitioner's lawyer Imtiaz Siddiqui started his arguments by saying that this case is very important in the prevailing situation.

The counsel said that differences widened between the parties in the wake of the Qasim Suri case and the political crisis increased after the National Assembly was restored.

"The federal government and the Election Commission of Pakistan (ECP) are not willing to hold elections which is why the court had to take suo motu notice," said Siddiqui, while highlighting the circumstances in which the apex court intervened in the matter.

The lawyer said that the problems created following the court’s directives to implement the Constitution after which the judges and judiciary were criticised.

"The government's ministers and members of parliament are responsible for this," the lawyer said, adding that the proposed legislation interfered with the independence of the judiciary.

He said that the president's objections to the bill were not examined. Siddiqui said that the bill will become law after the approval of a joint session of the parliament in 10 days.

He said that the Supreme Court makes its own rules under Article 191.

A three-member committee will decide on the formation of benches and taking up suo motu notice under the bill, the lawyer said, while explaining the important points of the bill.

"It is illegal for the cabinet to endorse a bill. Presenting and approving a bill in the cabinet are administrative matters," he noted.

He further said that the bill is not pending but is a proposed act, adding that it would become law in 10 days whether or not the president approves it.

Lawyer Siddiqui said that the Supreme Court can nullify the bill passed by parliament.

"The Supreme Court does not exist without the chief justice and by limiting his powers, the judiciary's independence and other judges will be affected," remarked the lawyer.

He further said that the CJP and the judges' powers cannot be curtailed. Siddiqui added that the apex court can review the steps taken by the state's institutions.

"The court can review the bill once it is passed and even before it is approved by the president," he insisted.

Siddiqui observed that parliament is bound to obey the orders given by the Supreme Court. "The Supreme Court's rules under Article 191 cannot be amended by parliament."

In his response to the lawyer, CJP Bandial said: "According to you, the freedom of judiciary is a basic right which enjoys complete security by the Constitution."

He added, "Similarly, you [Siddiqui] think that the judiciary also has constitutional security just like parliament and executive."

Siddiqui replied that the president is a symbol of unity of the state of Pakistan and his position as the head of state is not just ceremonial.

"The president directed to review the bill once again, however, the bill cannot be amended after the approval of the assembly," he said, adding that the process of legislation is considered done once it is passed.

Advocate Siddiqui requested the court to stop the bill from becoming law and the Ministry of Law should be restrained from notifying the proposed act as a law until the verdict is announced.

Siddiqui said that there is a right to appeal under the proposed bill.

"How can an appeal be filed if a 10-member bench hears a case? Can junior judges hear the appeal against the verdict announced by senior judges?" he questioned.

At this, CJP Bandial replied that all the judges in the court are equal.

Advocate Siddiqui said that the stages before the approval of the bill should also be taken into consideration in this case.

"What do you want from the court regarding this current case?" questioned Justice Akhtar.

To this, the lawyer said that the Supreme Court (Practice and Procedure) Bill, 2023 should be declared unconstitutional.

CJP Bandial remarked that this is an important case as the matter regarding the judiciary's independence was raised.

"We have the utmost respect for parliament, however, the court wants to examine the legislation," he stated.

The chief justice said that the court will try to schedule the next hearing as soon as possible when fellow judges are available.

Later, the SC issued notices to the parties in the petitions filed against the bill clipping CJP's powers including Pakistan Bar Council and Supreme Court Bar Association.

The apex court also issued notice to the attorney general for legal assistance, adjourning the hearing till next week.

The bill

The Supreme Court (Practice and Procedure) Bill, 2023 aims to give the power of taking suo motu notice to a three-member committee comprising senior judges, including the chief justice. It also aims to have transparent proceedings in the apex court and includes the right to appeal.

Regarding the formation of benches, the bill states that every cause, matter or appeal before the apex court would be heard and disposed of by a bench constituted by a committee comprising the CJP and the two senior-most judges. It added that the decisions of the committee would be taken by a majority.

Regarding the apex court's original jurisdiction, the bill said that any matter invoking the use of Article 184(3) would first be placed before the committee.

The bill says that if the committee is of the view that a question of public importance with reference to the enforcement of any of the fundamental rights conferred by Chapter I of Part II of the Constitution is involved, it shall constitute a bench comprising not less than three judges of the SC which may also include the members of the committee, for adjudication of the matter.

On matters where the interpretation of the Constitution is required, the bill said the committee would compose a bench comprising no less than five apex court judges for the task.

Regarding appeals for any verdict by an apex court bench that exercised jurisdiction under Article 184(3), the bill said that the appeal would have to be filed within 30 days of the bench's order for a larger SC bench. It added that the appeal would be fixed for hearing within a period not exceeding 14 days.

It added that this right of appeal would also extend retrospectively to those aggrieved persons against whom an order was made under Article 184(3) prior to the commencement of the SC (Practice and Procedure) Bill, 2023 on the condition that the appeal was filed within 30 days of the act's commencement.

The bill additionally said that a party would have the right to appoint its counsel of choice for filing a review application under Article 188 of the Constitution.

Furthermore, it states that an application pleading urgency or seeking interim relief, filed in a cause, appeal or matter, shall be fixed for hearing within 14 days from the date of its filing.

The bill said that its provisions would have effect notwithstanding anything contained in any other law, rules, or regulations for the time being in force or judgement of any court, including the SC and high courts.